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HQ 950597


February 13, 1992

CLA-2 CO:R:C:M 950597 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8103.10.60

District Director
U.S. Customs Service
511 N. W. Broadway Federal Building
Suite 198
Portland, Oregon 97209

RE: Protest No. 2904-91-000089; tantalum ingots; waste and scrap; Note 6(a), Section XV

Dear Sir:

This is in response to the Application for Further Review of Protest No. 2904-91-000089, dated May 24, 1991, which pertains to the tariff classification of tantalum ingots under heading 8103, Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise under consideration is tantalum ingots. Upon importation into the U.S., you liquidated the entry for the tantalum ingots under subheading 8103.10.60, HTSUS, which provides for "Tantalum and articles thereof, including waste and scrap...Unwrought tantalum including bars and rods obtained simply by sintering; waste and scrap; powders...Other." The Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit (Customs Form 7612) described the tantalum ingots as "2 boxes metal bars".

The protestant, Teledyne Wah Chang Albany, contends that the tantalum should be properly classified as waste and scrap under subheading 8103.10.30, HTSUS. Protestant has submitted a letter dated December 20, 1990, which it wrote to the Myers Group (U.S.) Inc. stating that "[t]he material was waste and scrap and did not become a useful product until after we converted it and returned good material to them." Additionally, a letter dated December 21, 1990, to the protestant states "CEZUS (the shipper) certify hereby that we shipped to you 1 144,5 kg of Tantalum scrap for toll remelting into ingots."

ISSUE:

Are the tantalum ingots properly classified as waste and scrap under subheading 8103.10.30, HTSUS?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states in part that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

The tantalum ingots are properly classified under heading 8103, HTSUS, which provides for "Tantalum and articles thereof, including waste and scrap...." Heading 8103, HTSUS, falls within Section XV making the Section XV Notes applicable to this classification. Note 6(a), Section XV, HTSUS, states that "[i]n this section, the following expressions have the meanings hereby assigned to them:

(a) Waste and scrap

Metal waste and scrap from the manufacture or mechanical working of metals, and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons.

Protestant contends that the tantalum ingots entered into the U.S. are waste and scrap. However, they have not submitted evidence substantiating that the tantalum ingots are waste and scrap pursuant to Note 6(a), Section XV, HTSUS, except to say that it is scrap. See, December 20, 1990 letter from protestant to the Myers Group (U.S.) Inc. A letter sent by CEZUS, the shipper, dated December 21, 1990, states that 1,144,5 kg of tantalum scrap for toll remelting into ingots was shipped to the protestant. However, no evidence has been submitted that the tantalum ingots are metal waste and scrap from the manufacture or mechanical working of metals. In the absence of such evidence we must agree with the action taken in liquidating the entry under subheading 8103.10.60, HTSUS.

HOLDING:

The tantalum ingots are classified under subheading 8103.10.60, HTSUS, "Tantalum and articles thereof, including waste and scrap...Unwrought tantalum including bars and rods obtained simply by sintering; waste and scrap; powders...Other."

This protest should be denied in full. A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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